North Carolina § 143-214 - 21. Riparian Buffer Protection Program: Riparian Buffer Restoration Fund.

§ 143-214. 21. Riparian Buffer Protection Program: Riparian Buffer Restoration Fund.

The Riparian Buffer Restoration Fund is established as a nonreverting fund within the Department. The Fund shall be treated as a special trust fund and shall be credited with interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3 . The Riparian Buffer Restoration Fund shall provide a repository for monetary contributions to promote projects for the restoration, enhancement, or creation of riparian buffers or to construct approved alternative measures that reduce nutrient loading as well or better than a riparian buffer that is lost and for compensatory mitigation fees paid to the Department. The Fund shall be administered by the Department. Moneys shall be expended from the Fund only for those purposes directly related to the restoration, acquisition, creation, enhancement, and maintenance of riparian buffers or to construct approved alternative measures that reduce nutrient loading as well or better than a riparian buffer. Compensatory mitigation fees paid into the Fund in connection with the loss of riparian buffers in a river basin and the interest earned on those fees may be used only for projects in that river basin. History (1998-221, s. 1.5(b); 1999-448, s. 2; 2005-443, s. 1.) Management of Water Quality in the Jordan Watershed. - For provisions pertaining to water quality rule-making for the Jordan Watershed pursuant to Session Laws 2009-216, ss. 1 and 3-8, as amended by Session Laws 2009-484, ss. 6(b), (c), 7, and 8, see the note at G.S. 143-214.7 . Water Quality and Quantity in the Upper Neuse River Basin. - For provisions pertaining to protection and restoration of water quality and quantity in the Upper Neuse River Basin, Falls Lake, and other drinking supply reservoirs pursuant to Session Laws 2009-486, see the notes at G.S. 143-214.1 and G.S. 143-215 . Jordan Lake Riparian Buffer Rules. - For provisions pertaining to the Jordan Lake Riparian Buffer Rules, see note for Session Laws 2013-395, s. 2(a), (b), under G.S. 143-214.20 . Delay Jordan Lake Rules and Jordan Lake Session Laws. - For provisions pertaining to Delay Jordan Lake Rules and Jordan Lake Session Laws, see editor's note to Session Laws 2013-395, s. 1(a), (b) under G.S. 143-214.7 and G.S. 143-215.1 . Editor's Note. - See the Editor's Note under G.S. 143-214.20 , relating to Session Laws 1999-448. Session Laws 2007-438, provides in its preamble: "Whereas, the General Assembly established the Riparian Buffer Protection Program (G.S. 143-214.20) to provide alternatives for persons who would otherwise be required to maintain riparian buffers; and "Whereas, the General Assembly directed the Environmental Management Commission to establish a compensatory mitigation fee to be paid into the Riparian Buffer Restoration Fund; and "Whereas, the Environmental Management Commission adopted a revised schedule of compensatory mitigation fees for nutrient loading offsets on 12 January 2006 in accordance with the Administrative Procedure Act; and "Whereas, the General Assembly enacted S.L. 2006-215, as amended by S.L. 2006-218 and S.L. 2006-255, which established a temporary per pound factor and method of calculation for nutrient offset fees in lieu of the fee schedule adopted by the Environmental Management Commission and directed the Environmental Review Commission to study issues related to the nutrient offset payment program; and "Whereas, the Environmental Review Commission entered into a contract with Research Triangle Institute, International (RTI), to provide consultant services for a study of the costs associated with providing nutrient controls that are adequate to offset point source and nonpoint source discharges of nitrogen and other nutrients; and "Whereas, the Environmental Review Commission received the final report from RTI on 11 June 2007; and "Whereas, the final report from RTI recommended a nutrient offset payment factor for nitrogen in the Neuse River Basin of $25.77 per pound of nitrogen; and "Whereas, the final report from RTI recommended a nutrient offset payment factor for nitrogen in the Tar-Pamlico River Basin of $19.70 per pound of nitrogen; and "Whereas, the final report from RTI recommended a nutrient offset payment factor for phosphorous in the Tar-Pamlico River Basin of $26.02 per tenth of a pound of phosphorus; and "Whereas, the final report from RTI recommended that a 10% fee be added to the nutrient offset payments to cover the costs of program administration; Now, therefore, The General Assembly of North Carolina enacts:" Session Laws 2007-438, ss. 1 to 3, as amended by Session Laws 2009-484, s. 3(a), provide: "SECTION 1. The per pound factors for nutrient offset payments are established as follows: "(1) For nitrogen in the Neuse River Basin, twenty-eight dollars and thirty-five cents ($28.35) per pound of nitrogen, calculated in accordance with the method used as of 1 January 2006 for determining pounds of nitrogen per acre. "(2) For nitrogen in the Tar-Pamlico River Basin, twenty-one dollars and sixty-seven cents ($21.67) per pound of nitrogen, calculated in accordance with the method used as of 1 January 2006 for determining pounds of nitrogen per acre. "(3) For phosphorous in the Tar-Pamlico River Basin, twenty-eight dollars and sixty-two cents ($28.62) per tenth of a pound of phosphorous. "SECTION 2. No later than 1 September 2010, the Department of Environment and Natural Resources shall develop and implement a plan to transition the North Carolina Ecosystem Enhancement Program nutrient offset program from a fee-based program to a program based on the actual costs of providing nutrient credits. The new program shall use the least cost alternative for providing nutrient offset credits consistent with rules adopted by the Environmental Management Commission for implementation of nutrient management strategies in the Neuse River Basin and the Tar-Pamlico River Basin. "SECTION 3. The Department of Environment and Natural Resources shall report on its progress in developing and implementing a new fee structure for the nutrient offset program to the Environmental Review Commission on 1 September 2008 and 1 March 2009." Session Laws 2007-438, s. 5, as amended by Session Laws 2009-484, s. 3(b), Session Laws 2010-180, s. 19, and Session Laws 2011-349, s. 13 provides: "This act becomes effective 1 September 2007 and applies to all nutrient offset payments, including those set out in 15A NCAC 2B.0240, as adopted by the Environmental Management Commission on 12 January 2006. The fee schedule set out in Section 1 of this act expires when amendments to 15A NCAC 02B .0240 and .0274 become effective." Session Laws 2011-394, s. 17(a)-(e), provides: "(a) Definitions. - The following definitions apply to this act and its implementation: "(1) The definitions set out in G.S. 113A-103 and G.S. 143-212 . "(2) The definitions set out in the Neuse River Basin Riparian Buffer Rule and the Tar-Pamlico River Basin Riparian Buffer Rule. "(3) "Coastal wetlands" means marshland as defined in G.S. 113-229 . "(4) "Commission" means the Environmental Management Commission. "(5) "Existing lot" means a lot of two acres in size or less that was platted and recorded in the office of the appropriate county Register of Deeds prior to August 1, 2000. "(6) "Neuse River Basin Riparian Buffer Rule" means 15A NCAC 02B.0233 (Neuse River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers), effective August 1, 2000. "(7) "Tar-Pamlico River Basin Riparian Buffer Rule" means 15A NCAC 02B.0259 (Tar-Pamlico River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers), effective August 1, 2000. "(b) Neuse River Basin Riparian Buffer Rule and Tar-Pamlico River Basin Riparian Buffer Rule. - Until the effective date of the revised permanent rules that the Commission is required to adopt pursuant to Section 17.(d) of this act, the Commission and the Department shall implement the Neuse River Basin Riparian Buffer Rule and the Tar-Pamlico River Basin Riparian Buffer Rule, as provided in Section 17.(c) of this act. "(c) Implementation. - The riparian buffer requirements of the Neuse River Basin Riparian Buffer Rule and the Tar-Pamlico River Basin Riparian Buffer Rule shall apply to development of an existing lot located adjacent to surface waters in the coastal area as provided in this section. Where application of the riparian buffer requirements would preclude construction of a single-family residence and necessary infrastructure, such as an on-site wastewater system, the single-family residence may encroach on the buffer if all of the following conditions are met: "(1) The residence is set back the maximum feasible distance from the normal high-water level or normal water level, whichever is applicable, on the existing lot and designed to minimize encroachment into the riparian buffer. "(2) The residence is set back a minimum of 30 feet landward of the normal high-water level or normal water level, whichever is applicable. "(3) Stormwater generated by new impervious surface within the riparian buffer is treated and diffuse flow of stormwater is maintained through the buffer. "(4) If the residence will be served by an on-site wastewater system, no part of the septic tank or drainfield may encroach into the riparian buffer. "(d) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend the Neuse River Basin Riparian Buffer Rule and the Tar-Pamlico River Basin Riparian Buffer Rule. Notwithstanding G.S. 150B-19(4) , the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 17.(c) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2) . "(e) The Department of Environment and Natural resources shall study the application and implementation of the Neuse River Basin Riparian Buffer Rule and the Tar-Pamlico River Basin Riparian Buffer Rule. The Department shall specifically consider: (i) whether the rules might be amended or implemented in a different way to achieve the same level of water quality protection while reducing the impact to riparian property owners in the river basins; and (ii) exempting all single family residence lots platted prior to August 1, 2000. In conducting this study, the Department shall consult with representatives of the development community, the agricultural community, the forestry industry, the environmental community, local governments, property owners, and other interested parties. The Department shall report its findings and recommendations to the Environmental Review Commission no later than February 1, 2012." Session Laws 2012-200, s. 20, provides: "Funds received by the State pursuant to the provisions of the Consent Decree entered into by the State in State of Alabama et al. v. Tennessee Valley Authority , Civil Action 3:11-cv-00170 in the United States District Court for the Eastern District of Tennessee and allocated to the Department of Agriculture and Consumer Services by the Committee Report to House Bill 950 shall be used exclusively to award grants for 'Environmental Mitigation Projects' of the types specified in paragraph 128 of the Consent Decree in the following counties: Avery, Buncombe, Burke, Cherokee, Clay, Graham, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Swain, Transylvania, Watauga, Yancey." Session Laws 2020-18, s. 15(a)-(d), provides: "(a) Notwithstanding 15A NCAC 02B .0701 (Nutrient Strategies Definitions), 15A NCAC 02B .0703 (Nutrient Offset Credit Trading), and 15A NCAC 02B .0713 (Neuse Nutrient Strategy: Wastewater Discharge Requirements), nutrient offset credits shall be applied to a wastewater permit by applying the TMDL transport factor to the permitted wastewater discharge and to the nutrient offset credits. "(b) Subsection (a) of this section applies only to wastewater discharge permit applications for a local government located in the Neuse River Basin with a customer base of fewer than 15,000 connections. "(c) No later than August 1, 2020, the Department of Environmental Quality, in conjunction with affected parties, shall begin the modeling necessary to determine new transport zones and delivery factors for the Neuse River Basin for point source discharges and nutrient offset credits. Once the Department has completed the modeling, the Environmental Management Commission shall use the modeling and other information provided during the public comment period to adopt new transport zones and delivery factors by rule. The Environmental Management Commission may adopt temporary rules to implement this section. "(d) This section is effective when it becomes law. Subsections (a) and (b) of this section shall expire when the rule required by subsection (c) of this section becomes effective." Session Laws 2020-18, s. 16(a), is a severability clause. Effect of Amendments. - Session Laws 2005-443, s. 1, effective September 27, 2005, deleted "the Division of Water Quality within" preceding "the Department" in the fourth sentence, substituted "a riparian buffer" for "the riparian buffer that is lost to offset the benefits to water quality, including the removal of nutrients, lost through the loss of buffers" in the penultimate sentence and made a minor stylistic change.